Will  the  U.  S.  Judiciary  Permit, 
and  the  People  Ratify,  the 
Congressional  Overthrow 
of  Our  Constitutional 
System  of  Govern- 
ment? 


Mr.  Watson's  Argument  Against  the 
Conscription  Acts 

Before  Judge  Emory  Speer,  at  Mt.  Airy,  August 
18.  1917 


Press  of 

THE  JEFFERSONIAN  PUB.  CO. 

Thomson,  Ga. 


Soottetnp 


Will  the  U.  S.  Judiciary  Permit, 
and  the  People  Ratity,  the 
Congressional  Overthroi/v 
ol   Our  Constitutional 
System  ol  Govern- 
ment? 

Mr.  Watson's  Argument  Against  the 
Conscription  Acts 

Belore  Judge  Emory  Speer,  at  Mt. 
Airy,  August  IS,  1917 

(  C^^^  ^^^  '^^^^  ^^  August,  1917,  Judge  Emory 
&yeer,  of  the  United  States  District 
Court,  heard  argument  in  the  cases  of  two 
negro  men,  jailed  in  Augusta,  Georgia,  for 
failure  to  register,  as  per  the  Acts  of  Con- 
gress, May  18,  1917. 

The  Judge  held  court  under  the  trees  in 
front  of  the  hotel,  with  a  large  crowd  of  peo- 
I  pie — many  of  whom  were  ladies — encircling 
*  the  improvised  open-air  court. 

Prohahly  no  Federal  Judge  ever  presided 

under  circumstances  so  unique  and  informal; 

and  the  inhom  respect  of  our  people  for  legal 

authonty  was  never  more  heautifully  illus- 

^  trated  than  hy  the  perfect  decorum  of  the 

"l^assemhlage  during  the  several  hours  of  the 

^^sultry  day,  xohen  Judge  Speer,  without  Mar- 

f^shal  or  Deputies,  or  other  official  attendants, 


held  couxt  as  our  Germanic  ancestors  did  a 
thousand  years  ago— under  the  spreading 
hranches  of  a  noble  tree. 

The  District  Attorney.,  Mr.  Earl  Donaldson., 
replied  to  Mr  .Watson  hy  reading  the  decision 
made  by  the  Supreme  Court  of  Georgia  dur- 
ing the  Civil  War,  and  the  obiter  of  the  U.  S. 
Supreme  Court  in  the  Tarble  case,  where  a 
STATE  undertook  to  question  an  Act  of  Con- 
gress. 

Mr.  Doncddson  did  not  attempt  any  de- 
fense of  Section  6  of  the  Conscript  law;  nor 
did  he  try  to  answer  Mr.  Watson's  argument 
on  the  13th  Amendment;  and  he  appeared  to 
evade  studiously  the  claim  that  the  citizen 
cannot  lawfully  be  sent  out  of  the  country 
against  his  will. 

Indeed,  the  District  Attorney  did  not  seem 
to  realize  that  the  President''s  prodamation  of 
July  10,  1917,  had  already  FUSED  THE 
STATE  MILITIA  WITH  THE  REGULAR 
ARMY,  IN  VIOLATION  OF  THE  CON- 
STITUTION. 

Judge  Speer  asked  that  the  briefs  of  the 
attorneys-  be  submitted  to  him,  and  he  stated 
his  purpose  to  carefully  consider  them  befo'^e 
rendering  his  decision.) 

May  it  please  your  Honor:  ' 

We  are  here  for  no  other  purpose  than  to 
discuss  a  question  of  law.  We  have  nothing 
whatever  to  do  with  the  politics,  or  the  senti- 
mental aspects  of  the  Great  War.  Those 
matters  have  no  place  in  this  forum  and  this 
case. 


We  are  here  with  one  issue  only,  and  that 
issue  is,  whether  Cono^ress  in  exercising  the 
Constitutional  grant  of  power  to  raise  armies 
has  enlarged  its  own  powers  and  those  of 
the  Executive  in  a  manner  destructive  to 
other  provisions  of  the  Constitution. 

Has  Congress,  wilfully  or  inadvertently, 
adopted  a  method  of  raising  armies  which 
overthrows  the  Constitutional  scheme  of 
government  ?  Does  the  method  of  1917  nullify 
the  system  created  in  1787?  Does  the  present 
plan  of  Arm}^  increase  practically  abolish  the 
militia  System  of  the  States,  which  system 
was  in  existence  when  the  present  Federal 
Government  was  formed,  and  whose  contin- 
ued existence,  as  a  necessary  part  of  State 
machinery,  is  provided  for  in  the  Constitu- 
tion? Is  it  within  the  power  of  Congress  to 
authorize  the  Executive,  by  his  Proclamation, 
to  fuse  the  militia  with  the  Eegular  Army 
and  order  it  beyond  seas  for  service  in  for- 
eign lands? 

Has  Congress  the  power  to  disintegrate  the 
States,  by  abolishing  the  essential  principles 
of  the  States'  Bills  of  Right,  thus  depriving 
the  States  of  the  sovereign  power  to  protect 
their  citizens  in  the  exercise  of  immemorial 
rights? 

If  the  Constitution  itself  forbids  a  State 
to  deprive  the  citizen  of  liberty,  save  as  a 
punishment  for  crime,  and  if  the  State  is 
forbidden  by  its  own  Bill  of  Rights  to  do 
this,  from  what  source  does  Congress  draw 
the  power  to  do  it  ? 

If   Congress   can   assume   any   one   power 


which  was  never  delegated,  but  which  was, 
on  the  contrary,  expressly  loithheld^  what 
would  become  of  Constitutional  government? 

If  Congress  can  legally  make  such  a  law 
as  Section  6  of  the  Act  of  May  18,  1917, 
which  places  every  State  officer — from  Gov- 
ernor down  to  Constable — under  the  orders 
of  the  President,  with  no  definite  limits  to 
the  President's  control  of  those  State  officers, 
and  with  a  penal  threat  suspended  like  the 
sword  of  Damocles  over  the  heads  of  those 
State  officers,  what  becomes  of  State  rights, 
sovereignty,  and  independent  authority? 

Under  Section  6,  of  the  Act,  the  entire  civil 
administration  of  the  State  is  subjected  to 
military  control  and  placed  under  the  com- 
mands of  the  President:  how  can  it  be  con- 
tended that  such  an  innovation  does  not  ef- 
fect a  revolution,  reversing  the  relative  posi- 
tion of  the  civil  and  militar^^  power,  and  over- 
throwing the  State's  control  of  its  own  in- 
ternal civil  administration? 

These  questions  are  respectfully  suggested 
in  the  case  at  bar;  and  there  is  no  other 
tribunal  which  can  authoritatively  answer 
them. 

In  the  very  nature  of  things.  Power  is 
grasping.    Its  innate  tendency  is,  to  grow. 

The  Constitutional  monarch  humanly  in- 
clines to  personal  absolutism.  Every  town 
council  is  tempted  to  become  a  local  Czar. 
Our  sage  forefathers,  knowing  the  weakness 
and  the  vices  of  human  nature,  fixed  the 
bounds  of  the  habitation  of  the  Federal  Gov- 


ernment  and  of  the  States;  and  to  each  sj^stem 
the  Constitntion  says,  in  a  spirit  of  paternal 
admonition,  '"''Be  content  with  the  orbit  as- 
signed your 

Bnt  because  no  person  can  be  trusted  to 
act  as  judge  in  his  own  case,  and  no  estab- 
lished authority  can  be  allowed  to  define  its 
own  limits,  our  forefathers  created  the  Ju- 
diciary. 

Holding  office  for  life,  removed  from  the 
accidents  of  politics,  elevated  above  the 
clamor  of  the  hour,  the  Federal  Judge  is  put 
on  guard  to  protect  the  Constitutional  rights 
of  all — the  Federal  Government,  the  States, 
and  the  humblest  citizen  who  comes  in  the 
hour  of  his  extremity  and  lays  his  hand  upon 
the  sacred  'altar  of  the  Law, 

In  this  case,  your  Honor,  two  poor  negroes 
are  the  applicants  for  protection ;  and  in  their 
behalf  we  say,  that  Congress  has  adopted  a 
method  of  raising  armies  which  not  only  vio- 
lates express  provisions  of  the  organic  law, 
but  which  destroys  the  immemorial  rights  of 
the  citizen,  and  revolutionizes  the  Constita- 
tional  scheme  of  mixed  Federal  and  National 
government. 

We  will  not  now  discuss — for  it  is  unneces- 
sary^— the  various  methods  by  which  Congress 
might  legally  raise  armies,  whether  by  boun- 
ties, by  employment  of  mercenaries,  by  oifer- 
ing  inducements  to  volunteers,  by  recourse 
upon  the  States  for  the  full  number  of  their 
militia,  or  other  mode:  the  sole  issue  here  is. 
Did  Congress^  in  May^  1917^  adopt  a  method 
ivhich  the  Constitution  ivill  not  tolerate. 


The  complainants  in  this  case  would 
have  no  standing  in  court,  were  it  not  for 
fact  that  our  sj^stem  of  government  is  differ- 
ent from  any  other,  and  that  such  questions 
as  are  raised  in  this  application  for  relief, 
hinge  upon  those  very  peculiarities  and  com- 
plexifies which  distinguish  our  Republic  from 
any  hitherto  known. 

Our  illustrious  statesmen  have,  exhausted 
the  resources  of  language  in  describing  this 
novel,  this  marvellous,  this  intricately  com- 
plex system — the  One  composed  of  Many,  the 
wheels  within  wheels,  the  indissoluble  union 
of  indestructible  States. 

At  the  very  outset  of  the  discussion,  we 
must  endeavor  to  realize  fully  the  controlling 
poAver  of  the  fact,  that  no  reasoning  based 
upon  analogy,  parallel,  or  precedent  will  be 
worth  the  breath  which  gives  it  utterance, 
if  that  reasoning  does  not  conform  to  the  Con- 
stitution of  the  United  States. 

Nothing  that  any  other  nation  has  done,  in 
ancient  times  or  modern,  authorizes  our  Gov- 
ernment to  adopt  the  policy  of  imitation,  if 
this  adopted  policy  conflicts  with  our  Su- 
preme Law,  and  Avith  the  perfect  integrity  of 
the  peculiar  system  of  mixed  Federal  and 
National  sovereignty^  created  by  the  Consti- 
tution. 

The  bare  fact  of  this  case  being  here,  illus- 
trates the  distinctive  nature  qf  our  Govern- 
ment. 

The  vital  fact  that  your  Honor  has  taken 
jurisdiction,  to  weigh  and  determine  the  va- 
lidity of  an  Act  of  Congress  approved  by 


the  Chief  Executive,  advertises  the  tremen- 
dous fact,  that  our  Federal  Union  not  only 
depends  upon  the  separate  existence  of  the 
three  sovereign  attributes  of  government,  but 
that  the  life-tenure  Judiciary  is  the  final  ar- 
biter, in  cases  where  the  citizen  alleges  that 
Congress  and  the  President  have  encroached 
upon  his  Constitutional  rights. 

In  no  other  country,  does  one  department 
of  the  government  thus  check  and  balance  the 
others. 

In  this  country,  there  is  no  such  doctrine 
as  Parliamentary  omnipotence.  In  our  Re- 
public, the  desires,  the  ambitions,  the  preju- 
dices, the  passions  of  the  majority — no  mat- 
ter how  numerous,  rich,  and  powerful — can 
never  overbear  and  override  the  minority,  de- 
priving it  of  time-honored  privileges,  im- 
munities and  rights,  unless  the  Judiciary 
prove  recreant  to  its  high  and  sacred  trust. 

Your  Honor!  The  place  you  fill  today 
towers  in  noble  importance  above  that  occu- 
pied by  any  monarch  on  this  troubled  sphere. 
You  are  humbly  asked  to  uphold  ancl  pre- 
serve the  Ark  of  the  Covenant  of  our 
Fathers.  We  come  reverently  to  the  Tables 
of  the  Law,  and  seek  to  have  you  tell  us  what 
is  there  written. 

No  greater  issue  of  life  or  death,  of  Con- 
stitutional liberty  or  legalized  servitude,  has 
ever  been  presented  to  your  Honor,  or  to 
any  other  Judge,  since  Moses  came  down  from 
Sinai. 

The  lives  and  fortunes  of  millions  of  men 


are  at  stake.     The  inherited  liberties  of  our 
English   forefathers   are   at  stake. 

In  countless  thousands  of  homes,  your 
Honor,  strong  men  are  suffering  more  than 
words  can  tell,  and  good  women  go  down 
on  their  knees  in  prayer,  while  we  are  here 
today  presenting  the  case  of  two  poor  ne- 
groes, whose  fate  involves  that  of  millions  of 
blacks  and  whites. 

In  a  general  way,  we  all  understand  that 
Anglo-Saxon  liberties  and  institutions  origi- 
nated before  there  were  such  things  as  writ- 
ten Charters  and  Constitutions.  We  all  un- 
derstand that  our  Colonial  forefathers 
claimed  these  immemorial  rights,  as  a  portion 
of  their  heritage.  We  are  all  more  or  less 
familiar  with  the  historic  tragedy  which 
caused  the  British-vSaxon  laws  to  be  overlaid 
and  smothered  by  the  feudal  tyrannies  of 
the  Norman  Conquest;  and  we  yet  drink  in- 
spiration from  the  glorious  revolt  of  1215, 
which  re-asserted  the  ancient  liberties  of  the 
realm. 

It  is,  or  has  heen^  our  boast  and  pride,  that 
these  immemorial  rights  of  free  men  came 
clown  to  ourselves,  Unimpaired,  inalienable, 
imperishable. 

Addressing  a  District  Judge  of  the  United 
States  Court  in  Atlanta  in  1873,  the  late  mag-j 
nificent  lawyer  and  orator,  Benj.  H.  Hill,  re- 
ferred reverently  to  "the  sacred  civil  jewels, 
.  .  *  from  an  English  ancestry,  hallowed  by 
the  blood  of  a  thousand  struggles." 

Said  Mr.  Hill— 

10 


"It  is  infidelity  to  forget  them.  It  is  sac- 
rilege to  disregard  them.  It  is  despotism  to 
trample  upon  them." 

I  congratulate  myself  and  the  country  that 
my  appeal  for  the  Constitution  is  addressed 
to  one  who  learned  law  in  part  from  the  great 
Georgia  Senator,  and  who,  like  the  Federal 
Judge  whom  he  addressed  in  1873,  amid  the 
turbulence  and  passions  of  Keconstruction, 
"possesses  the  ability  to  discern,  and  the  cour- 
age to  declare  the  law^  as  it  is." 

What  are  those  "sacred  civil  jewels"  to 
which  Mr.  Hill  referred,  and  which  are  treat- 
ed with  such  profound  respect  by  English  his- 
torians, advocates,  judges,  and  standard  au- 
thorities on  Constitutional  Law? 

They  form  the  very  Primer  of  Democracy. 
They  are  the  Holy  Scripture  of  Patriotism. 
No  intelligent  person  denies  that  these  ele- 
mentary principles  embrace  Life,  liberty, 
and  propert}'  —  carrying  protection  as  well 
as  security  to  one's  person,  to  one's  free 
choice  of  vocation,  to  one's  freedom  from  re- 
straint, to  one's  acquirement  and  enjoyment 
of  property  and  the  fruits  of  one's  toil,  unless 
deprived  thereof  in  some  manner  prescribed 
by  the  e?tablished  law  of  the  land. 

Necessarily  incident  to  personal  security,  is 
the  sanctity  of  one's  home,  which  is  inviolate, 
unless  a  warrant  be  sworn  out  against  it: 

Fair  trial  by  jury,  in  the  vicinity  of  one's 
residence,  when  accused  of  crime,  is  also  an 
immemorial  right: 

Freedom  to  speak  one's  opinions,  and  to 
publish  them  to  the  world,  with  a  view  to 

11 


winning  to  their  support  the  opinions  of  one's 
fellow-citizens : 

Freedom  of  religious  belief  and  worship : 

Freedom  to  keep  and  bear  arms,  for  the  pro- 
tection of  one's  life  or  property : 

The  right  to  representation  in  the  laying 
of  taxes,  and  the  making  of  laws. 

Underneath  the  whole  elaborate,  and  pow- 
erful structure  of  our  system  of  government 
lies  the  principle  which  is  the  exact  opposite 
and  irreconcilable  enemy  of  the  ancient  royal 
dogma  of  Absolutism,  or  the  Divine  Right 
of  Kings. 

That  fundamental  democratic-republican 
principle  is,  that  the  People  are  sovereign; 
the  j-^eople  are  the  source  of  honor,  privilege, 
and  power ;  and  all  just  government  rests  upon 
the  consent  of  the  People. 

Under  our  system,  no  Bourbon  can  say,  "I 
am  the  State,"  and  act  upon  that  monstrous 
theor}^ 

The  State  is  the  people,  and  the  people  are 
the  State;  and  it  necessarily  follows  that  in 
such  a  sj^stem  there  must  be  freedom  of  as- 
semblage, freedom  of  discussion,  and  freedom 
of  petition. 

In  his  elaborate  work,  "The  State,"  pub- 
lished in  revised  form  by  Woodrow  Wilson, 
then  Doctor  of  Law^s,  and  Professor  of  Juris- 
prudence and  Politics  at  Princeton — 1901 — 
the  learned  author  forcibly  and  most  truly 
says — • 

"Discussion  is  the  greatest  of  all  reform- 
ers. 

It  rationalizes  everything  it  touches. 

12 


It  robs  principles  of  all  false  sanctity  and 
throws  them  back  upon  their  reasonableness. 

If  they  have  no  reasonableness,  it  ruthlessly 
crushes  them  out  of  existence  and  sets  up 
its  own  conclusions  in  their  stead." 

("The  State,"  page  139.) 

These  ancient  rights  were  not  first  set  forth 
in  the  Charters  of  Henry  and  John:  those 
rights  had  been  in  existence  "from  time 
Avhereof  the  memory  of  man  runneth  not  to 
the  contrary," 

This  fact,  immensely  important  to  the  con- 
sideration of  the  new  laws  of  1917,  is  well 
stated  by  Dr.  Woodrow  Wilson,  his  then  title, 
in  his  yaluable  book,  "The  State." 

"Our  own  charters  and  constitutions  have 
.  .  .  been  little  more  than  formaL  statements 
of  rights  and  immunities  which  had  come  to 
belong  to  Englishmen  quite  independently 
of  royal  gifts  or  favor.  .  .  .  And  so  our  own 
Colonial  charters  .  .  .  simply  granted  the 
usual  rights  of  English  freemen. 

Our  constitutions  have  formulated  our  po- 
litical progress,  but  the  progress  came,  first." 
{The  State,  p.  564.) 

Chancellor  Kent,  Judge  Cooley,  Sir  Wil- 
liam Blax^kstone,  and  all  other  authorities  with 
whom  I  am  acquainted,  state  the  same  great 
truth— towit:  that  the  Great  Charter  of  1215 
and  its  succeeding  legislation  were  nothing 
but  the  re-assertion  of  ancient  liberties.  In- 
deed, Blackstone  says  in  his  Commentaries, 
if  my  memory  is  not  at  fault,  that  nearly  all 
of  the  remedial  laws  of  modern  times  consist 

13 


of  the  abolition  of  abuses  which  were  intro- 
duced by  tyrannical  Kings'. 

As  everybody  knows,  our  forefathers  con- 
tended that  these  ancient  English  liberties 
came  with  the  colonists  to  this  country.  A 
seven  years'  war  established  that  proposition. 

The  Mother  Country  acknowledged  the  In- 
dependence of  Thirteen  American  States,  sep- 
arately^ by  name :  the  old  Confederation  never 
issued  a  Declaration  of  Independence,  and 
was  never  recognized  by  Great  Britain. 

The  old  Confederation  of  the  Thirteen 
States  had  an  Army  and  a  Xavy  of  its  own; 
and  this  Army  and  Navy  were  independent 
of  the  States. 

Let  us  bear  that  in  mind,  for  the  fact  has 
its  bearing  on  the  issue  now  in  Court. 

The  independent,  sovereign  States  compos- 
ing the  Old  Confederation  select  delegates  to 
a  Constitutional  Convention,  commissioned  to 
amend  the  existing  Articles  of  Union.  In- 
stead, the  delegates  create  a  ncAV  Constitution, 
and  submit  their  work  to  the  States,  for  ac- 
ceptance or  rejection. 

The  requisite  number  of  the  States  separ- 
ately ratify  the  new  instrument  of  Union, 
altliough  North  Carolina  and  Rhode  Island 
did  not. 

Before  her  accession  to  the  new  Union, 
what  was  North  Carolina  ?  "V^Tiat  was  Ehode 
Island? 

There  can  be  but  one  answer :  each  of  those 
States  was  a  separate,  independent  sover- 
eignty, just  as  Sweden  is  today. 


The  new  Union  had  its  Army,  and  the  two 
separate  States  had  theirs,  consisting  of  their 
militia :  and  the  two  States  were  just  as  fully 
organized  into  political  entities,  as  Holland 
and  Denmark  are  at  this  time. 

AVhat  surrender  did  those  two  States  make 
of  their  control  over  their  militia,  ^dien  they 
at  length  came  into  the  Union? 

They  surrendered  nothing  of  that  supreme, 
sovereign  control,  except  that  the  Union 
might  use  this  militia  for  the  general  wel- 
fare, in  case  it  were  menaced  by  invasion,  re- 
bellion, and  resistance  to  the  laws  of  the 
United  States. 

That  is  all. 

What  Ehode  Island  and  North  Carolina 
surrendered,  the  other  eleven  States  yielded- - 
that  much  and  no  more. 

The  first  question — 

^A^iat  is  the  real  character  of  our  Govern- 
ment i 

Reasoning  applicable  to  other  nations  fails 
here.  What  Parliament  may  do  in  England, 
is  one  thing:  what  Congress  may  do,  in  the 
United  States,  another. 

We  lose  our  road  before  we  get  good  started, 
if  we  ignore  the  dual  system  of  the  United 
States. 

Gen.  Logan,  1879,  said  of  the  United  States 
Constitution:  "It  cannot  have  the  aspect  of 
both  a  sovereign  nation  and  a  collection  of 
sovereign  States. 

A  paradox  of  insurmountable  character  is 
involved  in  the  very  idea  of  such  a  thing." 

15 


In  his  reply,  Mr.  Hill  said — 

"It  is  a  remarkable  fact  that,  just  what  the 
honorable  Senator  from  Illinois  calls  an  in- 
surmountable paradox,  is  exactly  the  Consti- 
tution of  the  United  Statesy 

Mr.  Hill  then  proceeds  to  quote  from  Mr. 
Madison's  papers  in  The  Federalist,  and  from 
Mr.  Webster's  replies  to  Hayne  and  Calhoun, 
demonstrating  the  mixed  character  of  our  sys- 
tem, the  Federal  Government  being  national 
in  some  respects  and  federal  in  others — for 
instance,  the  House  of  Representatives  is  na- 
tional and  the  Senate,  federal;  while. the  Elec- 
toral College  is  fartly  hoth. 

Mr.  Hill  rose  in  one  of  his  flights  of  ora- 
torical splendor  as  he  described  our  complex 
system,  evolved  from  the  wisdom  and  experi- 
ence of  struggling  centuries,  a  system  whose 
model  had  never  existed.  He  said,  ""V^'lien  you 
hear  about  a  man  going  to  Eome  or  to  Greece 
or  to  Switzerland,  or  anywhere,  to  find  mod- 
els by  which  to  understand  the  Constitution 
of  the  United  States,  he  is  going  in  dark 
places  to  gather  light." 

Tracing  briefly  the  contest  between  the  two 
conflicting  theories  concerning  the  Constitu- 
tion, Mr.  Hill  denounced  the  extremists  of 
both  theories,  and  he  is  asked  this  memorable 
question — '"If  he  is  a  traitor  who  would  di- 
vide the  States,  how  can  he  be  less  a  traitor 
who  would  destroy  the  States?" 

Within  its  orbit,  the  national  government 

is  supreme:  within  their  spheres,  the  States. 

For  example,  the  State  is  sovereign  over 


the  jury-box,  and  the  qualifications  of  vot- 
ers: the  national  Government  has  no  author- 
ity except  to  prevent  racial  discrimination. 

Thus  the  sovereign  States  have  to  supply 
the  Federal  Government  with  jurors  for  its 
own  courts,  and  with  electors  for  its  own  elec- 
tions. 

In  fact,  the  national  Government  has  no 
electorate  at  all:  the  State  not  only  furnishes 
the  voters,  but  holds  the  elections. 

If  the  national  Government  were  deprived 
of  State  voters  and  jurors,  it  would  be  emas- 
culated; but  if  the  States  were  deprived  of 
everything  coming  to  them  from  the  Federal 
Government,  they  would  still  be  separate,  in- 
dependent, completely  organized,  and  self- 
sufficient  sovereignties. 

Unless  this  undeniable  fact  is  kept  in  mind, 
we  miss  the  true  understanding  of  our  com- 
plex system  of  government,  the  like  of  which 
was  never  before  seen  in  this  world. 

Students  of  government  have  said  that  our 
system  was  not  a  demonstrated  success:  they 
say  it  is  still  an  experiment. 

Perhaps  tljey  are  right.  And  it  may  be 
that  the  supreme  crisis  of  the  experiment  is 
upon  us, 

God  help  us  to  recognize  the  old  landmarks, 
and  to  go  by  them. 

I  lay  down  this  proposition  as  the  basis 
of  the  argument  against  the  new  Acts: 

The  Fathers  who  framed  the  organic  law 
of  our  Union  were  men  who  were  loyal 
supporters  of  sovereign  States,  and  who  were 


careful  to  safeguard  the  States  in  the  preser- 
vation of  those  sovereign  powers  not  dele- 
gated to  the  P^ederal  Government. 

Not  only  does  the  organic  law  of  the  Union 
say  this,  in  express  terms,  but  that  Supreme 
Law  also  recognizes  the  existence,  in  the  peo- 
ple themselves,  of  powers  which  even  the 
States  could  not  lawfully  impair. 

If  I  may  use  the  simile — the  jjeople  are  the 
great  reservoir  of  sovereignty^  from  which  the 
States  draw  for  their  needs.  Afterwards,  the 
States  expressly  gave  to  the  Federal  Govern- 
ment a  specified  portion  of  this  power,  so 
drawn  from  the  reservoir;  hut  neither  the 
Federal  Government  nor  the  States  have  ex- 
hausted the  source  from  which  their  powers 
were  drawn. 

Always,  the  people  remain  the  rightful 
heirs  of  the  English  liberties  which  the  writ- 
ers call  "immemorial";  and,  if  some  of  these 
inherited  rights  are  not  stated  in  the  organic 
laws,  they  nevertheless  exist,  and  can  be  as- 
serted whenever  the  people  see  fit. 

State  or  Federal  Constitutions,  subject  to 
amendment  at  the  popular  will,  have  recently 
undergone  great  changes;  and  it  is  not  im- 
probable that  the  people  will  draw  from  the 
reservoir  the  power  to  enfranchise  the 
women,  and  to  prohibit  the  manufacture  of 
intoxicating  liquors. 

In  dividing  sovereign  powers  between  the 
States  and  the  Federal  Government  which 
they  were  creating,  our  Fathers  took  particu- 

18 


lar  pains  to  protect  the  States  from  military 
encroachment. 

A  student  of  the  Convention  Debates,  of 
The  Federalist^  and  of  the  Constitution  itself, 
is  struck  by  that. 

In  the  Philadelphia  Convention,  the  dread 
of  military  agg-ression  found  frequent  utter- 
ance: and  in  The  Federalist^  the  best  efforts 
of  Hamilton  and  Madison  were  put  forth  to 
allay  those  fears. 

Again  and  again,  Hamilton  and  Madison 
reminded  their  countrymen,  that  the  Federal 
Government  could  never  deprive  the  States 
of  their  power  to  withstand  Federal  en- 
croachments, Tjeoause  the  States  Avould  always 
have  control  of  their  militia,  except  when  the 
Federal  Government  needed  it,  to  repel 
invasion,  &c.,  and  that,  even  then^  the 
State's  own  officers  would  remain  in  command. 

The  scheme  of  the  organic  law  of  the 
Union,  as  shown  in  the  very  language  used, 
was  that  the  Federal  Government  should  have 
an  Army  of  its  own,  and  that  each  State 
should  have  a  militia  system  capable  of  main- 
taining order,  enforcing  law,  and  safeguard- 
ing the  people  from  any  sudden  invasion. 

The  Federal  Government  has  no  authority 
whatever  over  the  State's  troops,  save  in  the 
three  emergencies  mentioned  in  the  Constitu- 
tion. 

It  follows,  therefore,  that  if  the  new  laws 
of  191 T  obliterate  this  clearly-drawn  distinc- 
tion, and  lump  the  State  troops  with  the  Na- 
tional Army,  they  violate  one  of  the  most 

19 


vital  parts  of  the  organic  law,  and  destroy  an 
integral  part  of  the  Constitutional  scheme. 

To  merge  the  militia  with  the  regular  Na- 
tional Army,  is  to  revolutionize  our  system  of 
government,  and  to  set  up  another,  totally  dis- 
similar. 

Under  the  Constitution,  as  plainly  written, 
(and  as  put  into  operation  by  President 
Washington  during  the  Pennsylvania  Whis- 
key Eebellion,)  no  Act  of  Congress  is  valid  if 
it  deprives  the  State  Governors  of  their  pre- 
rogative of  naming  all  the  officers  and  issuing 
the  call  for  the  troops^  when  the  President  de- 
clares, officially,  his  need  of  them  to  repel  in- 
vasion, suppress  insurrection,  and  execute  the 
laws.  ♦ 

These  provisions  were  placed  in  the  organic 
law,  out  of  wisely  jealous  regard  for  the  re- 
served sovereignty  of  the  States:  Congress 
has  no  authority  to  change  them,  and  the 
President  cannot  legally  overbear  them. 

Consequently,  the  issue  before  this  Court  is 
narrowed  to  a  conflict  between  the  plain  let- 
ter of  the  Supreme  Law,  upon  the  one  hand, 
and,  on  the  other,  the  Acts  of  Congress,  fol- 
lowed by  the  President's  proclamation,  which 
virtually  destroy  the  existence  of  the  State 
militia. 

Another  provision  of  the  Constitution  was 
adopted  for  the  declared  purpose  of  safe- 
guarding the  States  and  the  inherited  liber- 
ties of  the  people:  and  that  proAdsion  checks 
the  Congressional  power  to  raise  a  Federal 

20 


Army,  hy  the  two-year  limit  put  on  appro- 
priations. 

As  all  the  Eepresentatives  and  one-third  of 
the  Senators  were  to  be  chosen  biennially,  it 
was  thought  that  the  Federal  Government 
could  never  maintain  a  military  establish- 
ment dangerous  to  the  States  and  to  popular 
rights. 

The  recent  Acts  of  Congress  spread  these 
military  appropriations  over  a  period  of  30 
years;  and  therefore  we  say  that  the  wnole 
scheme,  composed  of  these  various  recent  acts, 
is  absolutely  violative  of  the  Constitutional 
mandate  which  forbids  that  sort  of  appro- 
priation for  a  term  of  more  than  two  years. 

It  is  claimed  that  "the  power  to  raise 
armies"  vests  Congress  with  plenary  powers, 
and  that  our  Government  can  raise  armies  by 
any  method  it  thinks  best. 

This  argument  might  have  weight  in  Eng- 
land, where  Parliament  is  untrammelled  by  a 
written  Constitution,  and  where  the  Govern- 
ment does  not  have  to  lean  on  sovereign 
States;  but  it  cannot  have  any  force  in  this 
country,  before  a  capable  and  fearless  Judge, 
who  knows  that  Congress,  alone,  cannot 
breathe  a  soul  into  statutes:  it  is  the  Consti- 
tution wMcTi  hreathes  the  hreath  of  life  into 
statutes. 

There  is  here  no  question  of  what  the  Court 
thinks  Congress  should  he  competent  to  do :  it 
is  simply  and  solely  a  question  of  what  the 
Constitution  authorizes. 

Every    house-top    in    America    might    be 


turned  into  a  rostrum  and  resound  with  clam- 
orous demands  for  this  law,  that  law,  and  the 
other;  but  an  upright  Judge,  thoroughly 
versed  in  the  Supreme  Law,  will  heed  noth- 
ing* save  the  lines  in  that  Golden  Book — that 
casket  of  the  Constitution,  which  as  Senator 
Ben  Hill  said,  keeps  for  us  the  sacred  jewels 
of  our  own  English  ancestr3^ 

Your  Honor  is  requested  to  take  judicial 
cognizance  of  the  published  Acts  of  Congress 
and  the  Proclamation  of  the  President,  July 
10,  1917:  we  respectfully  contend  that  these 
must  all  be  construed  together,  as  forming 
one  inseparable  military  plan,  system,  and 
policy. 

These  published  Acts  and  the  President's 
proclamation  not  only  abolish  the  independ- 
ent State  militia,  and  contravene  the  clause 
of  the  Constitution  which  prohibits  Congress 
from  making  appropriations  of  this  charac- 
ter for  a  longer  term  than  two  3'ears,  but  thoy 
destroy  the  ancient  Common  Law  principle 
of  ne  exeat^  and  they  violate  the  13th  Amend- 
ment. 

Xo  English  principle  was  more  firmly 
fixed,  than  that  the  subject  could  not  be  sent 
out  of  the  realm  without  his  consent."  So 
long  as  he  was  innocent  of  crime,  it  was  his 
right  to  abide  in  his  native  land.  Sir  William 
Blackstone  is  most  emphatic  on  that  point. 
The  King  could  forbid  his  subjects  to  go 
abroad,  but  he  could  not  banish  them:  they 
had  as  much  right  as  he,  to  stay  at  home. 

Your  Honor  will  remember  that,  when 
Eichard   II.    arbitrarily   expelled   Henry   of 

22 


Bolinjrbroko  from  England,  there  was  great 
dissatisfaction;  and  when  Bolingbroke  re- 
turned, the  people  rallied  to  him  and  de- 
throned the  King. 

Hon.  Hannis  Taylor  calls  attention  to  the 
historic  fact  that,  for  a  thousand  years  prior 
to  1776.  the  law  of  England  had  exempted 
the  militia  from  service  abroad,  and  he  cites 
the  statutes  I  Edw.  III.,  26  Geo.  III. 

Mr.  Tajdor  not  only  quotes  the  official 
opinion  which  Attorney-General  Wickersham 
gave  to  President  Taft,  Feb.  17,  1912,  but 
quotes  the  recent  statements  of  President 
Wilson,  who  for  so  many  years  was  Doctor 
of  Laws,  and  Professor  of  Law  at  Princeton : 

In  an  address  delivered  at  New  York,  Jan- 
uary 27,  1916,  he  said:  "I  believe  that  it  is 
the  duty  of  Congress  to  do  very  much  more 
for  the  National  Guard  than  it  has  ever  done 
heretofore.  I  believe  that  that  great  arm 
of  our  national  clef ense  'shovUdi  be  built  up 
and  encouraged  to  the  utmost ;  hut,  you  knoto, 
gentlemen,  that  under  the  Constitution  of 
the  United  States  the  National  Guard  is  un- 
der the  direction  of  more  than  twoscore 
States:  that  it  is  not  permitted  to  the  Na- 
tional Government  directly  to  have  a  voice 
in  its  development  and  organization;  and  that 
only  upon  occasion  of  actual  invasion  has 
the  President  of  the  United  States  the  right 
to  ask  those  men  to  leave  their  respective 
States.'"' 

In  an  address  delivered  at  Cleveland,  Ohio, 
January  29,  1916,  he  said:  "The  President 
of  the  United  States  has  not  the  right  to  call 

23 


on  these  men  [the  National  Guard]  except  in 
the  case  of  actual  invasion^  and,  therefore,  no 
matter  how  skillful  they  are,  no  matter  how 
ready  they  are,  they  are  not  the  instruments 
for  immediate  National  use." 

In  an  address  delivered  at  Milwaukee,  Jan- 
uary 31, 1916,  he  said :  "The  National  Guard, 
fine  as  it  is,  is  not  subject  to  the  orders  of  the 
President  of  the  United  States.  It  is  sub- 
ject to  the  orders  of  the  governors  of  the 
several  States,  and  the  Constitution  itself  says 
that  the  President  has  no  right  to  withdraw 
them  from  their  States  even,  except  in  the 
case  of  actual  invasion  of  the  soil  of  the 
United  States^ 

In  an  address  delivered  at  Topeka,  Kan- 
sas, February  2,  1916,  he  said:  '■''The  Con- 
stitution of  the  United  States  puts  them  [the 
National  Guard]  under  the  direct  command 
and  control  of  the  governors  of  the  States, 
not  of  the  President  of  the  United  States, 
and  th^  national  authority  has  no  right  to 
call  upon  them  for  any  service  outside  their 
States  unless  the  territory  of  the  Nation  is 

ACTUALLY  INVADED." 

Our  militia  laws  recognize  this  funda- 
mental personal  right,  b}"  virtually  providing 
that  the  Federal  Government  shall  never  send 
the  State  troops  out  of  the  country.  To  de- 
fend our  own  soil  from  the  invader.,  the  Fed- 
eral Government  may  employ  the  State  mili- 
tia :  to  suppress  a  domestic  rebellion ;  and  to 
enforce  the  United   States  laws  within  the 

24 


Eepublic  —  these  are  the  only  purposes  for 
which  the  State  troops  may  be  lawfully  used. 

Every  one  of  those  emergencies^  contem- 
pJates  SERVICES  at  home. 

The  ancient  Common  Law  is  a  part  of  our 
SA'stem,  so  recognized  in  all  the  standard  au- 
thorities and  leading  decisions.  The  Consti- 
tution did  not  supersede  it,  but  left  it  in  full 
force  by  express  provision.  (Articles  IX. 
and  X.  of  the  Amendments.) 

Common  law  marriage  still  exists,  and  so 
do  many  other  common  law  customs  and  prin- 
ciples, never  specifically  repealed.  In  fact, 
it  is  to  the  Common  Law  we  must  look,  if  we 
would  learn  what  are  those  "rights  .  .  .  re- 
tained by  the  people,"  in  addition  to  those 
which  they  had  delegated  to  the  LTnited  States 
and  those  "reserved  to  the  States." 

That  there  are  powers  and  rights  inherent 
in  the  people,  and  not  surrendered  to  the 
States,  or  to  the  United  States,  the  Supreme 
Law  emphatically  asserts  in  the  Ninth  and 
Tenth  Amendments. 

What  are  those  powers  and  rights? 

Whatever  they  are,  the  people  are  still  the 
possessors,  since  they  never  delegated  them, 
expressly,  or  by  necessary  implication. 

Among  those  retained  rights,  is  that  of 
marriage  without  license,  minister,  or  cere- 
monial formality :  the  highest  New  York 
Court  has  recentl}^  re-affirmed  that  doctrine. 

To  the  same  heritage  of  Common  Law 
rights,  belongs  the  principle  that  the  citizen 
cannot  be  forcibly  sent  out  of  his  native  land. 

25 


To  sum  up  the  whole  matter,  we  respect- 
fully submit  to  your  Honor,  that  our  Consti- 
tutional system^  prior  to  the  adoption  of  the 
post-bellum  Amendments,  was  intended  and 
designed — ■ 

(1)  To  form  a  more  perfect  union  of  sov- 
ereign States  than  the  Old  Confederation  had 
brought  into  effect; 

(2)  To  establish  justice,  in  accordance  with 
English  ideals  and  institutions; 

(3)  To  insure  domestic  tranquility  by 
placing  under  central  control  the  militia  of  all 
the  States,  when  internal  tumults  broke  out; 

(4)  To  promote  the  general  welfare  by  a 
uniform  system  of  laws  and  administration, 
on  matters  affecting  all  the  States  in  com- 
mon; 

(5)  To  provide  for  the  common  defence 
of  all  the  Stated,  by  using  for  each  the  power 
of  all; 

(6)  To  secure  the  blessings  of  liberty  to 
ourselves  and  our  posterity — those  liberties 
which  were  so  well  understood  at  the  time, 
that  the  Fathers  thought  it  unnecessary  to 
enumerate  them  in  a  Bill  of  Eights; 

(7)  To  leave  the  States  in  full  possession 
of  all  sovereign  powers  not  ceded,  including 
the  right  to  prescribe  the  qualifications  of  vot- 
ers, and  of  jurors :  also  the  right  to  maintain 
a  State  militia,  and  govern  the  same,  ex- 
cept when  it  was  constitutionally  called  forth 
in  the  service  of  the  United  States  for  one  of 
the  three  purposes  named; 

(8)  To  leave  the  citizen  of  the  State  in 
complete  possession  of  his  immemorial  rights, 

26 


as  understood  by  the  Fathers,  and  as  set  forth 
in  such  State  papers  as  the  Great  Charter,  the 
Act  of  Habeas  Corpus,  the  Petition  of  Rights, 
the  Bill  of  Rights,  and  the  Amendments  to 
the  United  States  Constitution  adopted  prior 
to  the  Civil  War. 

Whether  an  Act  of  Congress  imposing  com- 
pulsory military  service  upon  citizens  of  a 
selected  age  would  have  been  held  Constitu- 
tional prior  to  1865,  need  not  now  be  con- 
sidered. We  know  that  the  States,  alone, 
exercised  that  power,  to  some  extent,  during 
the  Revolutionary  War;  and  that  the  efforts 
of  the  Government  in  1814  and  1833,  to  se- 
cure such  an  Act,  were  defeated. 

At  the  time  the  Fathers  invested  Congress 
with  the  power  "to  raise  armies,"  the  small 
Kingdom  of  Prussia  was  the  only  European 
state  that  had  been  accustomed  to  raise  them 
by  compulsion.  The  English  system,  since 
Feudalism  and  its  Knight-service  of  40  days 
a  year,  had  consist  en  tlj''  been  voluntary. 
Crimping  and  kidnapping  were  the  abuses  of 
the  system,  but  there  was  never  a  legalized 
conscription  until  the  third  year  of  the  pres- 
ent war ;  and  even  now,  there  is  no  compulsory 
service  imposed  upon  Ireland,  Canada  and  — 
I  believe — Australia. 

We  earnestly  submit  to  your  Honor,  that 
no  decision  made  prior  to  1865  would  adjudi- 
cate the  issues  we  raise  in  favor  of  these  two 
complainants. 

The    13th,    14th,    and    15th    Amendments 

27 


worked  material  changes  in  the  pre-existing 
Constitutional  s^'stem. 

'  The  negro  and  his  civil  statns  were  the  sub- 
jects matter:  but  the  words  of  the  law  could 
not  measure  the  citizen's  rights  by  the  color 
of  his  sldn.  What  was  law  for  the  black,  be- 
came law  for  the  white;  and  what  was  law 
for  the  natural  person,  became  law  for  the 
artificial. 

I  call  your  Honor's  special  attention  to  the 
fact  that  the  United  States  Courts  have  held 
the  14th  Amendment  to  annul  the  11th. 

The  Eleventh  Amendment  denies  to  the 
United  States  Courts  jurisdiction  over  suits 
commenced  or  prosecuted  against  one  of  the 
United  States  by  citizens  of  another  State; 
and  that  Amendment  was  adopted  to  protect 
the  sovereign  States  from  being  made  defend- 
ants in  United  States  Courts  by  private  citi- 
zens of  a  State,  or  of  a  foreign  country. 

It  is  well  known  that  Chisholm's  case 
against  the  State  of  Georgia  was  the  provoca- 
tive of  that  Amendment. 

After  the  adoption  of  the  11th  Amendment, 
it  was  universally  respected  by  the  United 
States  Courts,  during  all  the  j'ears  preceding 
the  Civil  War,  and  during  the  entire  period 
covered  by  that  lamentable  struggle. 

But  when  the  14th  Amendment  was  adopt- 
ed, after  the  War,  a  different  course  was  pur- 
sued. 

That  change  in  the  Supreme  Law  created, 
for  the  first  time.,  a  citizenship  of  the  Fed- 
eral Government,  as  distinguished  from  State 
citizenship ;  and  the  States  were  forbidden  by 

28 


the  Federal  Government,  for  the  first  time, 
to  make  any  law  abridging  the  rights  of  these 
newly-made  United  States  citizens. 

Xo  State  was  thereafter  to  be  allowed  to  de- 

;  prive  any  person  of  life,  liberty,  or  property, 

without  due  process  of  law;  nor  to  deny  to 

any  person  within  its  jurisdiction  the  equal 

protection  of  the  laws." 

How  was  it  iDossible  for  the  United  States 
Courts  to  give  etfect  to  the  14th  Amendment 
without  ignoring  the  11th? 

If  the  citizen  -  corporation  of  New   York 
could   not   bring   suit   against   the   State   of 
Georgia,  claiming  that  the  State  had  made 
;  a  law  violating  the  14th  Amendment,  where 
■  would  redress  be  sought? 
\      The  long  line  of  decisions  in    which    the 
I  United  States  Courts  have  set  aside,  or  en- 
joined the  enforcement  of,  State  laws,  upon 
the  ground  that  they  were  confiscatory,  and 
therefore  in  violation  of  the  14th  x^mendment, 
necessarily  rest  upon  the  idea  that  the  later 
|,  Amendment  prevails  over  its  predecessor. 
[      Now,  with  all  the  earnestness  of  my  nature, 
'  I  appeal  to  your  Honor  to  say  whether  the 
'  14th  Amendment,  so  effective  to  safeguard 
property,  does,  not  equally  protect  life;  and 
whether  the  13th  Amendment,  being  a  part 
of  the  radical  change  made  in  the  Constitu- 
tional system,  after  the  Civil  War,  does  not 
override  any  preceding  clause  in  the  Supreme 
Law  and  all  decisions  made  thereunder! 

The  vast  combinations  of  wealth,  incorpo- 
rated for  all  manner  of  business  enterprise, 

29 


have  taken  refuge  in  the  broad  provisions  of 
law,  made  particularly  for  the  negro, 

I  was  i^resent,  some  37  years  ago,  when  the 
Justices  of  the  Supreme  Court  of  Georgia 
heckled  and  jeered  at  the  late  Frank  H.  Mil- 
ler, when  that  able  attorney  invoked  the  l4th 
Amendment  in  behalf  of  the  Augusta  Street 
Railway. 

Justice  Blandford  told  Mr.  Miller,  laugh- 
ingly, that  the  14th  Amendment  had  noth- 
ing to  do  with  railroads:  ''Ht  was  made  for 
niggers.^'' 

With  equal  force,  it  could  be  said,  that  the 
13th  Amendment  was  made  for  niggers ;  and, 
in  this  case,  we  would  not  care,  because  our 
clients  are  niggers. 

But  the  Congressional  leaders  who  prepared 
the  general  plan  to  safeguard  the  black  man 
in  all  of  his  newly-won  freedom,  made  their 
language  as  broad  in  the  13th  Amendment,  as 
they  did  in  the  14th. 

Not  only  the  white  man,  but  the  corpora- 
tions owned  by  the  whites,  can  come  into 
Court  and  successfully  plead  against  any 
form  of  servitude  to  which  they  are  opposed. 

Can  a  cot'poratwn  be  made  to  serve  the 
Government  against  its  ivillf 

That  very  issue  may  be  sprung  within  the 
next  few  weeks,  and  your  Honor  may  have 
to  pass  on  it. 

I  am  not  speaking  of  martial  law,  duly* 
proclaimed;  nor  of  military  law  embracing 
camps,  trenches,  and  troops  in  actual  service: 
I  am  speaking  soleh"  of  the  civilian,  and  the 
civil  status;  and  nry  contention  is,  that  the 

30 


citizen  can  no  more  be  lawfully  forced  into 
military  service,  than  he  can  be  drafted  to 
mine  coal,  smelt  metals,  build  post-roads,  and 
dredge  rivers  and  harbors. 

And  my  contention  further  is,  that  while 
the  enlisted  man,  legally  a  soldier,  is  a  sol- 
dier for  all  purposes,  and  from  the  very  na- 
ture of  the  employment,  may  be  sent  any- 
where and  controlled  absolutely  by  his  offi- 
cers, THE  CIVILIAN,  standing  flat-footed  on  his 
rights  under  the  Constitution,  cannot  he  arbi- 
tranly  deprived  of  his  liberty^  cannot  be  sent 
out  of  the  United  States^  cannot  be  compelled 
to  undergo  any  form  of  servitude^  and  cannot 
be  legally  controlled  in  his  personal  move- 
ments^ AVHEN  HE  IS  OUTSIDE  OF  THE  TERKITORIAL 
JURISDICTION  OF  THIS  REPUBLIC. 

To  say  that  Congress  can  forfeit  the  Con- 
stitutional rights  of  millions  of  citizens,  and 
can  authorize  their  despotic  control  in  Eu- 
rope, is  abhorrent  to  every  idea  of  civil  lib- 
erty, and  repugnant  to  every  principle  of 
sound  law. 

The  Act  of  May  18,  1917,  together  with 
other  legislation  constituting  the  general 
Army  plan,  has  been  officially  construed  by 
the  President  to  mean,  not  only  the  incorpo- 
ration of  the  State  militia  into  the  Regular 
Arnw — which  we  say  is  unconstitutional — but 
to  mean,  that  citizens  may  be  "assigned"  to 
manual  labor,  in  fields,  mines,  and  factories. 

The  language  of  the  President  in  his  Ad- 
dress to  his  Fellow  Countrymen  is,  that 
"thousands,  nay,  hundreds  of  thousands  of 

31 


men,  otherwise  liable  to  military  service  will 
of  right  and  necessity  be  excused  from  that 
service,  and  assigned  to  the  fundamental,  sus- 
taining work  of  the  fields  and  factories  and 
mines." 

Has  Congress  the  power  to  authorize  a  sys- 
tem of  industrial  servitude? 

The  law  under  discussion  is  held  to  be 
broad  enough  for  that  purpose,  and  the  Pres- 
ident apparently  so  understands  it. 

What  else  could  be  meant  wdien  he  speaks 
of  citizens  being  "assigned"  to  manual  labor  ? 

Who  will  do  the  assigning?  Who  will  send 
a  thousand  black  men  to  the  fields,  find  a 
thousand  white  men  to  the  mines? 

If  they  are  unwilling , to  be  assigned,  and 
must  be  coerced,  what  becomes  of  the  13th 
Amendment  ? 

The  liberty  of  one  is  the  liberty  of  all:  in 
defending  these  two  negroes,  we  defend  every- 
body. If  Congress  can  annihilate  their  civil 
status,  and  "automatically"  transform  them 
into  soldiers,  it  can  with  equal  legality  trans- 
form them  into  peons,  and  slaves.  No  Alex- 
andrian sword  can  cut  a  cleavage  between  the 
prohibition  against  slavery  and  the  prohibi- 
tion against  involuntary  servitude.  The  bolt 
which  smites  one,  smites  the  other:  the  curse 
of  the  Supreme  Law  is  pronounced  against 
both. 

How  then,  is  Congress  to  raise  armies? 

The  conscript  has  never  yet  played  any 
part  in  English  history;  and  very  little  in 
ours. 

32 


There  are  4,000,000  volunteers  fighting  Eng- 
hind's  battles  at  this  time;  and  nearly  1,000,- 
000  Americans  voluntarily  enlisted  in  our 
Army.  Who  knows  how  many  would  volun- 
teer, under  conditions  which  convinced  our 
people  that  such  service  is  needed  for  the  de- 
fense of  the  country? 

There  is  no  limit  to  the  number  of  able- 
bodied  men  that  the  States  may  enroll  in  the 
militia,  and  the  United  States  has  ample  con- 
stitutional power  to  appropriate  every  one 
of  these  men,  provided  the  service  is  needed 
to  repel  invasion,  suppress  ins,urrection,  or  ex- 
ecute the  laws  of  the  Union. 

TAvelve  million  men  will  spring  to  arms,  at 
the  call  of  the  Government,  to  defend  their 
country. 

It  is  the  idea  of  being  sent  into  foreign 
lands,  to  fight  for  something  not  understood, 
that  agitates  our  people,  deters  enlistments, 
and  spreiads  consternation. 

Not  a  line  of  the  Supreme  Law  indicates 
the  purpose  of  the  Fathers  to  authorize  the 
use  of  the  military  for  any  other  purposes 
than  those  stated  in  the  Preamble,  and  in 
the  body  of  the  Constitution;  and  those  pro- 
visions strictly  limit  the  use  of  our  troops 
to  tranquilizing  our  own  country,  upholding 
our  system  of  laws,  and  repelling  any  invader 
who  ventures  to  attack  our  frontiers. 

That  question,  however,  is  not  before  the 
Court.  The  only  question  here  is,  the  Con- 
stitutionality of  this  Act  of  Congress. 

If  Congress  has  undertaken  to  raise  armies 

33 


by  a  method  which  violates  the  Supreme  Law, 
then  Congress  must  try  some  other  method. 
If  the  method  hastily  adopted  by  Congress 
destroys  the  guaranteed  liberties  of  the  eiti 
zen,  then  Congress  must  choose  some  other 
plan.  To  raise  armies  is  a  legitimate  power, 
most  necessary  to  preserve  the  Union;  but 
that  power  must  not  be  abused,  to  the  destruc- 
tion of  our  republican  institutions. 

If  the  destruction  of  the  Temple  of  our 
liberties  is  a  condition  precedent  to  raising 
armies,  then  it  is  a  colossal  instance  of  pay- 
ing too  much  for  the  whistle. 

Liberties  without  armies,  are  preferable  to 
armies  without  liberties. 

History  presents  but  too  many  illustrations 
of  the  truism,  that  a  great  noise,  concerning 
imaginary  foreign  dangers,  has  often  cov- 
ered the  designs  of  those  who  conspired 
against  domestic  freedom. 

May  it  please  your  Honor,  I  beg  leave  to 
submit  to  your  most  thoughtful  consideration 
these  additional  propositions — 

(1)  The  new  Acts  of  Congress  emasculate 
the  States,  deprive  them  of  powers  necessary 
to  preserve  a  republican  form  of  government, 
and  make  it  impossible  for  the  States  to  pro- 
tect their  citizens  in  the  enjoyment  of  those 
rights  guaranteed  to  them  by  the  Constitu- 
tions of  the  States: 

(2)  That  the  new  laws  usurp.  Federal  con- 
trol over  the  State  militia,  and  render  the  sov- 
ereign State  powerless,  in  case  of  any  unfore- 
seen and  sudden  riot,  invasion,  or  other  emer- 

34 


gency  which  puts  the  State  upon  the  defen- 
sive, to  uphold  its  authority  and  defend  its 
soil: 

(3)  That  the  new  Acts  disintegrate  the 
States,  disorganizing  and  revolutionizing 
their  internal  titfairs,  penalizing  freedom  jf 
speech  and  of  press;  and  rendering  ineffec- 
tive the  State's  Constitutional  guarantee  of 
life,  Uberty,  property,  and  pursuit  of  happi- 
ness. 

In  other  words,  the  Acts  complained  of 
amount  to  a  repeal  of  the  most  important  of 
the  civil  liberties  set  forth  in  every  State  Bill 
of  Eights. 

(4)  They  violate  both  the  letter  and  the 
spirit  of  the  organic  act  of  the  Union,  totally 
subvert  the  scheme  of  divided  and  balanced 
sovereigntv,  reduce  the  States  to  the  helpless- 
ness of  subject  provinces,  and  are  therefore 
null  and  void. 

(5)  Section  6  of  the  Act  (May  18,  1917) 
places  under  Presidential  conscription  every 
officer  of  the  State.  The  new  duties  of  the  offi- 
cials thus  conscripted,  are  left  undefined. 
Those  State  officers  must  obej^  such  orders  as 
the  President  chooses  to  issue.  In  case  the 
Governor  of  a  State  fails  or  refuses  to  do  what 
the  President  tells  him  to  do,  the  Governor 
becomes  guilty  of  a  misdemeanor.  If  he 
should  be  unable  to  give  bond  when  arrested, 
he  must  go  to  jail.  He  may  then  continue 
to  act  as  Governor,  the  best  he  can,  from  the 
prison  to  which  the  President  commits  him. 
If  found  guilty  at  his  trial,  he  may  be  pun- 
ished by  a  year's  imprisonment;  or  if  held 

35 


to  be  a  part  of  the  military  establishment, — 
and  therefore  subject  to  military  law  —  he 
may  be  summarily  court-martialed  and  in- 
continently "shot. 

No  other  construction  can  be  put  upon 
Section  6,  if  it  is  admitted  that  the  Governor 
is  one  of  the  officers  of  a  State. 

To  every  State-officer  the  same  section  ap- 
plies; and  no  matter  how  pressing  might  be 
the  needs  of  the  State  for  the  diligent  service 
of  her  officials,  she  is  compelled  to  sacrifice 
the  interests  of  the  State  to  the  demands  of 
the  President. 

In  other  words,  the  State  government  is 
paralyzed,  and  the  various  organs  of  State 
administration  must  cease  to  perform  their 
functions,  if  the  President  exercises  the  enor- 
mous powers  conferred  by  this  Act. 

Such  powers  are  not  democratic,  or  repub- 
lican ;  they  are  imperial,  belonging  to  systems 
Avhere  Divine  Eight  and  One-man  Power  are 
supreme,  and  wdiere  the  personal  will  of  the 
sovereign  is  not  limited  by  charter  or  kept 
in  check  by  independent,  incorruptible  courts. 

You  may  ransack  your  law-libraries,  read 
every  paper  of  Hamilton  and  Madison,. scan 
every  speech  of  Webster  and  John  Quincy 
Adams,  study  every  decision  of  John  Mar- 
shall, Joseph  Story,  and  Roger  Taney — but 
you  will  search  in  vain  for  the  germ  of  the 
revolutionary  doctrine,  that  Congress  may, 
through  the  Executive,  transform  State  Gov- 
ernors into  Presidential  satellites,  lesser  State 
officers  into  Federal  officials,  and  suspend  the 

36 


sovereignty  of  the  State,  by  sending  the 
entire  State  establishment  to  jail,  for  non- 
performance of  Federal  duties,  suddenly 
thrust  upon  it  bj"  Congress. 

If  this  kind  of  thing  can  be  done,  anything 
can  be  done. 

It  comes  dangerously  near  to  abolishing  the 

,  State's  form  of  republican  government,  if 
it  does  not,  in  fact,  do  that  very  thing. 

"What's  left  of  the  State's  form  of  repub- 
lican government,  when  her  entire  establish- 
ment is  placed  under  conscription  by  the  Fed- 

■   eral  Government  ? 

i      What  could  be  a  more  ruinous  blow  at  the 

I  separate,  sovereign  existence  of  the  State, 
within  its  Constitutional  orbit,  than  an  Act 
of  Congress  which  fuses  all  State  establish- 
ments into  one  federal  mass,  and  makes  the 

;  whole  mass  criminal,  if  it  fails  to  obe}^  such 

I  commands  as  the  President   may    see    fit    to 

'  issue? 

It  is  almost  a  mocl^ery  to  talk  of.  the  Con- 
stitution and  the  laws,  and  of  our  unprece- 
dented mixed  system  of  government,  when 
such  a  revolutionary  Act  of  Congress  is  be- 
ing enforced. 
i  Has  any  statesman  in  this  Union  ever  con- 
tended tliat  the  President  can  be  legally  vest- 
ed with  authority  to  prescribe  duties  to  any 
and  all  State  officers?  Has  any  Court  done 
so? 

Does  the  power  to  raise  armies  carrj'^  powcjr 
to  subjugate  peaceful,  lo5^al  States? 

37 


Cannot  we  raise  armies  "without  burying  the 
Constitution?  Must  we  build  our  military 
system  in  the  cemetery  where  we  have  first 
entombed  the  States? 

V 

It  has  been  many  years  since  I  appeared 
in  any  court — except  where  compelled  to  go  in 
my  own  behalf — and  had  not  expected  to 
ever  argue  another  case.  But  th€  vital  and 
lasting  results  that  depend  upon  the  recent 
Acts  of  Congress,  caused  me  to  volunteer  my 
services,  and  I  am  here,  without  fee  or  other 
reward,  and  with  no  other  interest  than  that 
of  a  lover  of  liberty  and  of  country. 

As  well  as  possible,  under  the  shadow  and 
handicap  of  a  terrible  domestic  affliction,  I 
have  done  my  duty  by  those  who  trusted  me. 

The  issue  is  with  your  Honor. 

Let  me  conclude,  in  the  words  with  Avhich 
Mr.  Hill  ended  the  great  argument  already 
quoted : 

"Sir,  m  disunion  through  the  disintegration 
of  the  States,  I  have  never  been  able  to  see 
anything  but  anarchy  icith  its  endless  horrors. 
In  disunion  through  the  destruction  of  ~ the 
States,  I  have  never  been  able  to  see  anything 
but  rigid,  hopeless  despotism,  with  all  its  end- 
less oppression.  In  disunion  by  any  means, 
in  any  form,  for  any  cause,  I  have  never  been 
able  to  see  anj'thing  but  hlood,  and  icaste,  and 
niin  to  all  races  and  colors  and  conditions  of 
men. 

"But  in  the  preservation  of  our  Union  of 
States,  this  confederate  nation,  I  have  never 

38 


been  able  to  see  anything  but  a  grandeur  and 
a  glory  such  as  no  people  ever  enjoyed,  I 
prav  God  that  every  arm  that  shall  be  raised 
to  destroy  that  Union  may  be  withered  before 
it  can  strike  the  blow." 


39 


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